DPP v McFadden

 
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2003 WJSC-CC 4124

THE COURT OF CRIMINAL APPEAL

Keane C.J.

Finnegan P.

Kelly J.

175/01
DPP v. MCFADDEN

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
-V-
GERALD ANTHONY McFADDEN
APPLICANT
Abstract:

Criminal law - Appeal - Evidence - Admissibility - Whether court had erred in law in admitting evidence - Whether evidence obtained in breach of applicant’s constitutional rights

1

JUDGMENT of the Court delivered the 3rd day of March, 2003 by Keane C.J.

Keane C.J.
2

The applicant was convicted on 30th July 2001 by the Special Criminal Court of being in possession of information of such a nature that it was likely to be useful in the commission by members of an unlawful organisation of a serious offence, contrary to s.8 of the Offences Against the State (Amendment) Act,1998. He was sentenced to a term of 4 years imprisonment and, having been refused leave to appeal, now appeals to this court.

3

The facts are relatively straightforward. The applicant was driving a car in the town of Donegal on the 15th April 2001 when he was stopped by a member of the Gardaí. He was asked to provide a specimen of his breath for measurement by a device called the alcometer. Garda McCready said in evidence that, as a result of the reading, he formed the opinion that the applicant was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place. He accordingly arrested him under s. 49(8) of the Road Traffic Act,1961and brought him to the Garda station in the town. No issue arises in this case as to the validity of that arrest and the subsequent detention of the applicant.

4

On his arrival at the Garda station, the applicant was handed a form by Garda McHugh, the member in charge, containing a notification of his rights while in custody. Garda McHugh then informed him that he proposed to search him and asked whether the applicant had any objection; the applicant said he did not. He then conducted a body search of the applicant which, he said in evidence, was for the purpose of ensuring that there were no weapons or articles on his person which would harm anybody. During the course of the search, he removed the belt which he was wearing, since that would be something which could be a source of harm to the applicant when he was placed in his cell. In the course of the search, he found a wallet in the back pocket of the applicant's trousers. The transcript continues as follows:

"621 Q.

What did you do in relation to the wallet?

A.

I searched the wallet, your honour

Q.

Where were you when you were searching it?

A.

I would have returned back to the chair.

Q.

What did the accused do?

A.

He became very agitated….

Q.

Can you say what you then did?

A.

I proceeded to search the wallet.

Q.

Why?

A.

First of all, he was not from the jurisdiction and I wasn't aware of who he was, it was to establish his identity, if he had any information that would relate to his identity and his correct address. He wasn't known to me....

Q. 641.

Can you describe precisely the behaviour of the prisoner as you searched the wallet and thereafter?

A.

As I searched the wallet, he told me 'don't go near the wallet' and he became very agitated.

5

In addition to some plastic cards, Garda McHugh found a small piece of paper tightly wrapped up in the wallet. Garda McCready, who was also present at this juncture, said that, as Garda McHugh unwrapped the paper, the applicant lunged forward in an attempt to get the paper.

6

The paper on examination was found to contain the name and address of a Superintendent in what was then the Royal Ulster Constabulary, together with details of his wife and family, his car and registration number and another car and the place where his wife worked. It also recorded the fact that the Superintendent was a Catholic and attended a particular chapel for Mass on Sundays.

7

Counsel for the applicant objected to the admissibility of this document on the ground that it had been obtained as the result of an unlawful search by Garda McHugh. The court of trial was satisfied that it was admissible and, as already noted, convicted the applicant of the offence created by s.8 of the Offences Against the State (Amendment) Act,1998. The applicant did not give evidence.

8

The sole ground of appeal argued on behalf of the applicant was that the ruling of the court of trial that the document found as a result of the search of the applicant's wallet by Garda McBride was admissible was erroneous in point of law.

9

On behalf of the applicant, Mr. Sammon SC submitted that where a consent to a search by the Gardaí is refused or, having been given at the outset, is withdrawn, such a search may only proceed if the Gardaí are

(a) authorised to carry out the search and
10

(b) inform the applicant of the authority for the search.

11

If neither of these requirements are met, he submitted, the search in question is an unlawful violation of the person's constitutional right to privacy and nothing obtained as a result of the search is admissible in evidence. He cited in support the decision of this court inThe People (DPP) -v- O'Donnell [1995] 3IR 351 and of the High Court in Kennedy and Others -v- Ireland [1987] IR 587.

12

On behalf of the respondent, Mr. Paul Higgins SC submitted that the evidence established that the wallet was obtained by Garda McHugh in the course of a search being earned out by him with the consent of the applicant and, accordingly, it was not necessary for the Gardaí in this case to invoke a statutory or other power of search or to inform the person of the reason for the search. He further submitted that, in any event, the Gardaí enjoyed a common law power to search a person who was being lawfully detained by them. In particular, the court of trial was entitled to accept the reason...

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